This is an archived article that was published on sltrib.com in 2017, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
America's Constitution recognizes God-given rights to life, liberty and property and calls on government to protect those rights. When criminals endanger homes, lives and communities, Utah's Constitution directs criminal cases be brought by elected public prosecutors.
It has been said that "A fearless and earnest prosecuting attorney, within the limits of his powers and prerogatives, is a bulwark to the peace, safety and happiness of the people." Prosecutors are dedicated public servants, but their important role is powerful. Few others can petition courts to deprive people of their property, their liberty, and (in rare instances) their lives. Malicious and dishonest conduct by prosecutors must not be tolerated and should be guarded against with vigilance.
Sometimes, claims of "prosecutorial misconduct" are raised and some begin to wonder whether all prosecutors have lost their integrity. Nothing could be further from the truth. The Utah Commission on Criminal and Juvenile Justice's JRI report indicates that in 2015 and 2016 there were 217,257 non-traffic case filings in Utah's district and juvenile courts. Over those same two years, Utah's appellate courts only reversed convictions twice where a defendant claimed prosecutorial misconduct.
The term "prosecutorial misconduct" is misleading because it describes acts which may not be malicious. Black's Law's definition is "a prosecutor's improper or illegal act (or failure to act), esp. involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment." Every time a criminal is convicted and disagrees with something a prosecutor did or didn't do, appeals will claim prosecutorial misconduct and any other possible imperfection. "Prosecutorial misconduct" is so broad it even includes a prosecutor's suggestion in closing argument that the defense attorney's argument is a "red herring." Even though nobody objected to anything in the prosecutor's closing argument, the Utah Court of Appeals later found misconduct in using this well-known cliché.
Prosecutors' power is limited. Prosecutions only begin after a police investigation is complete. When prosecutions occur defense attorneys constantly challenge them through preliminary hearing and trial. Judges and juries review prosecutions. If conviction results, appellate courts review the prosecution further. Rules of Criminal Procedure require prosecutors to disclose evidence that might reduce the accused's guilt or punishment. Rules of Professional Conduct order prosecutors to only file charges supported by probable cause and to prevent anyone on their team from inappropriate contact with the media.
The State Bar, the regulatory agency for attorneys, may investigate and discipline prosecutors who violate these rules. Judges who learn a prosecutor is committing misconduct are authorized to hold that prosecutor in contempt, including jail time. Office policies, including open file policies already adopted by offices across the state, ensure all prosecutors play by the rules. Additionally, prosecutors are constitutionally accountable to the public through the political process with regular elections for county attorney, district attorney and attorney general.
Every branch of government and every private industry includes some bad folks who should be held to account. But creating new disciplinary committees and regulations to further constrain all prosecutors will not serve the public good. Prosecutors in constant dread of retaliation who only file criminal charges in slam-dunk cases cannot protect the public. Prosecutors beholden to whims of legislative or executive branches are not independent. Ultimately, prosecutors are accountable to justice and to the people.
Practicing law can be very lucrative, but nobody becomes a prosecutor with visions of getting rich. Those who decline private practice to prosecute do so out of concern for victims of crime, passion for public service, vision of safe communities, and dedication to America's fundamental principle of justice for all.
The Statewide Association of Prosecutors, Jeff Buhman, Utah County attorney, co-chair; Sim Gill, Salt Lake County district attorney, co-chair; Jann Ferris, Morgan County attorney; Chris Allred, Weber County attorney; Steve Garside, Layton City, city board member; Jami Brackin, Summit County, civil board member; Patricia Cassell, Summit County, Justice Board member.